In the 1990s the House of Lords demolished the old common law rule against convicting a husband for rape

Funny how one assumes, perhaps illogically, that former British colonies still adopt and follow English law.

I read about the Eighth sitting of the National Youth Parliament which debated, among others, the subject of rape, and looked up the subject of marital rape in “The English Legal System” by Slapper & Kelly. In the 1990s, a decision taken by the House of Lords abolished the 250 year-old rule against convicting a husband for the rape of his wife. In a case study of “The possibility of rape within marriage”, this question was referred to the House of Lords by the Court of Appeal and was considered so important, that seven Law Lords sat to hear the appeal rather than the usual five.

In 1736, Chief Justice Sir Matthew Hale had pronounced that “the husband cannot be guilty of a rape committed by himself upon his lawful wife……..”, and this had ever since been accepted as the enduring principle of the common law.

In 1989 and 1990 “the whole concept of marital exemption in rape” was examined and “the need to extend the exceptions to the doctrine of implied consent..” was considered. Reference was made to the Sexual Offences (Amendment) Act 1976, and the Sexual Offences Act 1956, which states that “a man commits rape if……….he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it.” The Court of Appeal discussed the matter and Lord Lane, CJ, delivered the decision. The court concluded that the common law should adapt itself to changing social attitudes. “……..where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule……..”. Further, “We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with the victim”. (The Court of Appeal juggled with the words ‘unlawful’ and ‘illicit’).

The House of Lords “unanimously followed the decision and reasoning of the Court of Appeal” and agreed that “Hale’s pronouncement never was law; it was always a fiction and had infiltrated the common law…..”.

Under the Criminal Justice and Public Order Act (1994), the word “unlawful” was removed from the definition of rape……………..and “the fiction of marital consent removed forever”.